HKSAR v. NG KAM HUNG

DCCC 223 & 1074/2018 (Consolidated)

[2019] HKDC 61

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 223 AND 1074 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant faced the following Charges:

Charge 1: Trafficking in a dangerous drug (section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134)

Charge 2: Possession of apparatuses fit and intended for the inhalation of a dangerous drug (section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134)

Charge 3: Possession of offensive weapons (section 17 of the Summary Offences Ordinance, Cap 228)

Charge 4: Possession of arms without a licence (section 13 of the Firearms and Ammunition Ordinance, Cap 238)

2.  The defendant was convicted of Charges 1, 2 and 4 upon his plea of guilty and admission to the amended consolidated summary of facts.  On the application of the prosecution, Charge 3 was ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Summary of facts

3.  The defendant was intercepted by police officers at the 6th floor lift lobby of Un Shing House, Un Chau Estate at 7:44 pm on 1 December 2017.  He tried to flee at the time but was subdued near Room 603.

4.  The defendant had 2 cigarette boxes in his hand, each containing a transparent resealable plastic bag with substances inside.  They were later found, respectively, to be 26.2 g of a solid containing 4.22 g of methamphetamine and 20 g of a solid containing 3.13 g of methamphetamine.

5.  The defendant confessed to ownership of the drugs after he was arrested and cautioned for trafficking in them (Charge 1).

6.  The defendant was then brought to Room 617 where he resided.  Upon search of the room, the following items were found on a desk:

(a) 2 inhaling devices, being bottles with plastic straws and glass rods inserted (Charge 2);

(b) 1 paper box containing an electronic scale, 4 straws, 2 lighters and 2 packs of empty transparent resealable plastic bags.

7.  The defendant was arrested for the possession of the inhaling devices.  He confessed under caution that they were ‘ice’ bottles and were for his own use.

8.  In addition to the devices and the paraphernalia related to trafficking, from inside a recyclable bag placed next to the desk, the Police found a 17 cm long torch-shaped stun gun (Charge 3), 2 walkie-talkies and a black ski mask.

9.  In the subsequent video recorded interviews, the defendant claimed that the substance inside the 2 cigarette boxes was the drug commonly known as ‘ice’, which he had bought from a friend for $7,000 shortly before his arrest.  The plastic bags, scale, lighter and straws were tools used for his trafficking.  He would sell the re-packaged ‘ice’ to his friends for $100 to $200 each.

10.  The two ‘ice’ bottles were bought around 6 months ago from Ap Liu Street.  The defendant had been using ‘ice’ for 4 to 5 years, spending $400 to $500 per week on drugs, consuming once a day.

11.  The stun gun was bought for fun by him around one month ago, also in Ap Liu Street.  He knew how to operate it.

Previous convictions

12.  The defendant has 7 previous convictions, two of which were for possession of dangerous drugs for the purpose of unlawful trafficking under the now repealed section 7 of the Dangerous Drugs Ordinance.  He was sentenced to 3 year’s imprisonment in the District Court in January 1988, and then 12 months’ imprisonment in North Kowloon Magistracy in August the same year.  The later sentence was ordered to run concurrently to the January sentence.

13.  His next drug related conviction was for possession of dangerous drugs, when he was sentenced to 4 months’ imprisonment in April 1997.

14.  The defendant then managed to stay on the right side of the law until 4 June 2018, when he was sentenced to 4 months’ imprisonment for possession of dangerous drugs.  The present Charges 1 and 2 were committed on 1 December 2017.  I was told by the prosecution, and confirmed by counsel for the defendant, that the defendant had committed the present offences whilst on police bail for the possession case.  This is an aggravating factor that will have to be considered.

Mitigation

15.  The defendant is 54.  He was educated up to Form 1 level in Hong Kong.  He was unemployed at the time of his arrest, but did work as a part-time delivery worker before that, earning about $6,000 per month.

16.  The defendant is married and has 3 children with his wife.  Unfortunately, his wife has been sentenced to a term of imprisonment recently, but should be released by August 2020.

17.  Due to the family circumstances, their 16 year old daughter, who is in court today, is now staying at a Juvenile Home.  The 11 year old son studies in a boarding school in Hong Kong, while their 7 year old son is residing with a foster family.  Despite being separated, I am told that the defendant has maintained contact with the children and their relationships continue to be harmonious, with letters and a Christmas card to prove so.

18.  The Chaplin of the defendant also wrote and told the court how the defendant is a friendly, responsible and helpful person and sought leniency on his behalf.

19.  Mr Iu told the court that the defendant committed the trafficking offence because he was in need of money to try to provide better for his children.  He is truly remorseful and hope to be able to be released before his wife so that he can take care of them again.  There is no suggestion that any of the drugs in the trafficking charge were for the defendant’s self-consumption.

20.  As for the stun gun, Mr Iu was not able to provide any information as to why the 2 walkie-talkies and the ski mask were found together with the stun gun inside the bag.  It is, however, Mr Iu’s submissions that they would not be sufficient evidence to prove that the defendant had intended to use or had allowed the stun gun to be used for unlawful purposes.

Sentencing considerations

21.  The maximum sentences for the 3 offences on conviction upon indictment are as follows:

(1) Trafficking in a dangerous drug: a fine of $5,000,000 and imprisonment for life.

(2) Possession of apparatuses fit and intended for the inhalation of a dangerous drug: a fine of $10,000 and imprisonment for 3 years.

(3) Possession of arms without a licence: a fine of $100,000 and imprisonment for 14 years

Charge 1

Sentencing tariff for the trafficking offence

22.  According to the cases of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun, [2014] 3 HKLRD 691, the sentencing tariff for trafficking in methamphetamine hydrochloride (commonly known as ‘ice’) in quantities of up to 10 grammes is 3 to 7 years’ imprisonment.

23.  An arithmetical application of the tariff would lead to a starting point of slightly more than 71 months for the 7.35 g of ‘ice’ in our present case.  I will adopt a starting point of 71 months’ imprisonment.

24.  Although this is the defendant’s third conviction for trafficking in dangerous drugs, the last two were 30 years ago.  Given the lapse of time, I will not find the fact that he had similar convictions an aggravating factor.

25.  There is, however, one serious aggravating factor in that the defendant committed the present offence whilst on Police bail for the offence of possession of dangerous drugs.  For this aggravating factor, I will enhance the sentence by 7 months’ imprisonment, taking the sentence to 78 months’ imprisonment.

26.  The only mitigating factor is the defendant’s timely guilty plea.  For this, he is entitled to the full one-third discount and is, therefore, sentenced to 52 months’ imprisonment on Charge 1.

Charge 2

27.  There are only 2 devices involved.  I adopt a starting point of 6 months’ imprisonment^[1], which is discounted to 4 months’ imprisonment after granting the full one-third discount for his timely plea.  Given the fact that I will be ordering this sentence to run concurrently to the sentence in Charge 1, even though the aggravating factor of committing the offence whilst on Police bail also applies, I have not enhanced this sentence.  There are no other aggravating or mitigating factors.

Charge 4

28.  The stun gun in question is capable of generating a peak-to-peak voltage of 151,426 volts.  It is a portable device designed to disable a person by means of an electric shock applied either with or without direct contact with the person.  If applied to the chest, carotid or spine, the shock could alter heart rhythms, cause severe pain, disrupt blood flow to the brain or to stimulate motor neurons, resulting in stunning and disabling effects on the subject.

29.  The portability of this device suggests that its possession can easily be concealed.  Its power to disable a person without the need of direct contact makes it more difficult to anticipate or avoid an attack, or to apprehend the attacker.

30.  In the case of HKSAR v Mohamed P Shafik, CACC 224/2014, the Court of Appeal applied the general principles derived from its earlier judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai, CACC 25654/2005 and confirmed, first, that an immediate custodial sentence is required for offences of this type.

31.  Secondly, the starting point to be adopted differs with the facts of each case.

32.  Thirdly, important considerations include the power of the stun gun in terms of discharge voltage; whether it had been or may be used for an unlawful purpose; and whether there is a real risk that the weapon will fall into the hands of someone who will use it for such purpose.

33.  In the case of Shafik, the stun gun was able to generate a peak-to-peak voltage of 145 kilovolts, which was much more powerful than those in the earlier two cases, but less than the 151.426 kilovolts in our present case.

34.  In Shafik, the applicant had the stun gun secured on a belt around his waist at the time of his arrest and the finding of the stun gun.  He had also explicitly admitted that he worked as a bouncer and had the stun gun for self-defence.  The Court agreed with the trial judge’s finding that there was a real risk of him using the stun gun when necessary.

35.  The Court found that a proper starting point was 24 months’ imprisonment.

36.  In the case of Li Hung Kwan, the stun gun was being carried around by the applicant inside a waist bag at the time of his arrest at a construction site, where he went to look for a job.  There was expert evidence to say that, at around 35,000 volt of pulsating voltage, the power output of the battery powered device was regarded as ‘small’.

37.  The Court described the power of the stun gun as in the middle-lower range.  They also found that there was no evidence to suggest that the applicant had or may use it for unlawful purposes.  After reviewing a number of earlier decisions, the Court found that a proper starting point in the circumstances was that of 20 months’ imprisonment.

38.  In our present case, while it does seem suspicious that the stun gun was found together with 2 walkie-talkies and a ski mask inside a bag, I would find there is insufficient evidence to suggest that there was any real risk of the defendant using the stun gun for any unlawful purpose, or that someone else might have access to it for such a purpose.

39.  The power of the stun gun is, however, 4.3 times that of the one in Li Hung Kwan, and 6426 volts higher than the one in Shafik.  This must be taken into consideration when deciding on the appropriate sentence.

40.  Under the circumstances, I find that a proper starting point is that of 21 months’ imprisonment.

41.  The defendant committed the offence whilst on Police bail.  However, given the different nature of the offences, and given that there is no evidence to suggest that the defendant had bought the stun gun whilst he was on Police bail, I will not enhance this sentence on this basis.

42.  The defendant is, therefore, sentenced to 14 months’ imprisonment after granting him the full one-third discount for his guilty plea.

Totality

43.  First of all, in accordance with the principles enounced in the above referred to cases of HKSAR v Lee Yuen Ping, Maggie and HKSAR v Eriksson Rickard Wilhelm, I order that the sentence for Charge 2 be served wholly concurrently with that of Charge 1.

44.  Taking a step back, I find that 7 months of the sentence for Charge 4 should run consecutively to the sentences for Charges 1 and 2, the balance concurrently.

45.  The defendant is, therefore, sentenced to a total of 59 (being 52+7) months’ imprisonment.